EPIQ SYSTEMS INC FORM 8-K (Current report filing) Filed 10/09/14 for the Period Ending 10/08/14 Address 501 KANSAS AVENUE KANSAS CITY, KS 66105-1309 Telephone 9136219500 CIK 0001027207 Symbol EPIQ SIC Code 7371 - Computer Programming Services Industry Software & Programming Sector Technology Fiscal Year 12/31 http://www.edgar-online.com Copyright 2014, EDGAR Online, Inc. All Rights Reserved. Distribution and use of this document restricted under EDGAR Online, Inc. Terms of Use.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of report (Date of earliest event reported): October 8, 2014 EPIQ SYSTEMS, INC. (Exact Name of Registrant as Specified in Charter) Missouri 001-36633 48-1056429 (State or other Jurisdiction (Commission (IRS Employer of Incorporation) File Number) Identification Number) 501 Kansas Avenue Kansas City, Kansas 66105 (Address of Principal Executive Offices) (Zip Code) (Registrant s telephone number, including area code): (913) 621-9500 Not applicable (Former Name or Former Address, If Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. On September 18, 2014, the Board of Directors of Epiq Systems, Inc. (the Company ) announced that it had commenced a process to explore a full range of strategic and financial alternatives, which may include among other things, acquisitions, divestitures, or a going-private or recapitalization transaction, in order to determine a course of action that is in the best interest of all shareholders. In order to ensure that this strategic review is carried out in the best interest of all shareholders, on October 8, 2014, the Board amended and restated its existing Amended and Restated Bylaws dated June 2, 2010 (such previous bylaws, the Previous Bylaws and such new bylaws, the New Bylaws ). The amendments are intended to ensure, among other things, that the Company and its shareholders have all the information material for decision making purposes and that the special interests of one or more shareholders are not advanced in a manner that is inconsistent with the interests of the Company and its shareholders generally. The New Bylaws do not impair the Company s shareholders ability to nominate individuals for election to the Board, or propose new business, in accordance with the Company s bylaws and applicable law. The Board is committed to acting in the best interests of all shareholders, and these actions enhance the Board s ability to do just that. The New Bylaws, which became effective immediately upon the Board s approval, contain the following changes: Advance Notice for Shareholder Nominations of Directors and Shareholder Proposals of Business. In Section 2.3(b) of Article II, the New Bylaws require notice of both shareholder nominations of directors and shareholder proposals of business for the annual meeting to be delivered to the Company not less than 180 calendar days nor more than 200 calendar days prior to the first anniversary of the date the proxy statement was released to the shareholders in connection with the preceding year s annual meeting, subject to certain conditions. The Previous Bylaws required notice to be delivered not less than 180 calendar days prior to such anniversary. As previously disclosed in the Company s Proxy Statement for its 2014 annual meeting, a shareholder must submit a nomination or new business proposal for consideration at the 2015 annual meeting of shareholders by no later than November 1, 2014. The amendment to Section 2.3(b) of Article II did not modify the due date with respect to the 2015 annual meeting. Information Requirements for Shareholder Nominations of Directors and Shareholder Proposals of Business. In Section 2.3 of Article II, the New Bylaws update and expand the information required to be provided by shareholders in connection with shareholder nominations of directors and proposals of business at a shareholder meeting. Among other things, a nominating shareholder and others acting in concert with the nominating shareholder must provide details regarding their interest in the Company (including information regarding derivative positions and hedging transactions with respect to the Company), their investment intent and strategy with respect to their investment in the Company, any arrangements or contacts with other parties regarding the proposed nominees, and additional information with respect to the proposed nominees. These updated and expanded information requirements will apply to nominations and new business proposals made in connection with the 2015 annual meeting of shareholders of the Company. Eligibility to Nominate Directors at a Shareholder Meeting. In Section 2.3(a) of Article II, the New Bylaws provide that in order to nominate a director, the nominating shareholder must have been in compliance with their timing, filing and disclosure obligations under 17 C.F.R. 240.13d-1 through 240.13d-7 under the Securities Exchange Act of 1934 for a period of at least twelve months prior to the time their notice regarding director nominations is delivered (or required to be delivered). Conduct of Meeting. In Section 2.5 of Article II, the Board clarified that the chairman of the meeting has the power to adjourn shareholder meetings to another place, date and time.
Eligibility to Serve as a Director. In Section 3.2 of Article III, the New Bylaws provide that no person will be qualified to serve as a director unless he or she consents in writing to all applicable Board policies and guidelines of the Company. Exclusive Forum. In Section 7.7 of Article VII, the New Bylaws designate the Circuit Courts of Jackson County in the State of Missouri, or, if such court lacks subject matter jurisdiction, the United States District Court for the Western District of Missouri as the exclusive forum for derivative actions; breach of director, officer or other employee duty claims; claims arising out of The General and Business Corporation Law of Missouri, the Company s Articles of Incorporation or Bylaws; and claims governed by the internal affairs doctrine. The Board also made certain technical and conforming amendments in the New Bylaws. The foregoing description of the New Bylaws is qualified in its entirety by reference to the full text of the Amended and Restated Bylaws, a copy of which is filed as Exhibit 3.1 to this report and is incorporated herein by reference. Item 9.01 Financial Statements and Exhibits. (d) Exhibits. The following exhibits are filed as part of this report: 3.1 Amended and Restated Bylaws of Epiq Systems, Inc., effective October 8, 2014. 3
SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: October 8, 2014 4 EPIQ SYSTEMS, INC. By: /s/ Tom W. Olofson Name: Tom W. Olofson Title: Chairman of the Board, Chief Executive Officer and Director
EXHIBIT INDEX Exhibit Number Description 3.1 Amended and Restated Bylaws of Epiq Systems, Inc., effective October 8, 2014. 5
Exhibit 3.1 AMENDED AND RESTATED BYLAWS 1 OF EPIQ SYSTEMS, INC. A Missouri Corporation ARTICLE I OFFICES The principal office of Epiq Systems, Inc., a Missouri corporation (the Corporation ), shall be located in the City of Kansas City, State of Kansas. The Corporation may also have offices at such other places, either within or without the State of Missouri, as the Board of Directors may from time to time determine or as the business of the Corporation may require. The Registered Office of the Corporation, required by The General and Business Corporation Law of Missouri to be maintained in the State of Missouri, shall be as designated in the Articles of Incorporation, and the location of the Registered Office may be changed from time to time by action of the Board of Directors to any other place in Missouri. ARTICLE II SHAREHOLDERS Section 2.1 Annual Meeting. An annual meeting of shareholders shall be held during the month of June in each year on the day and at the hour to be designated by the Board of Directors or the Chairman of the Board or the President, at the principal offices of the corporation, or at such other place, either within or without the State of Missouri, as may be designated in the notice of such meeting, for the purpose of electing directors and for the transaction of such other business as may properly come before the meeting. If the election of directors shall not be held on the day designated for the annual meeting, the board of directors shall cause the election to be held as soon thereafter as may be convenient. Section 2.2 Special Meetings. Special meetings of the shareholders may be held at any time for the consideration of such matters as shall be specified in the Corporation s notice of such meetings. Such special meetings shall be held at the time and place, either within or without the State of Missouri, specified in the notice of such meeting, and shall consider only such business as shall be specified in the notice of such meetings. Except as otherwise required by law and subject to the rights, if any, of the holders of any class or series of stock having a preference over the Common Stock as to dividends or liquidation, special meetings of the shareholders may be called only by the Chairman of the Board, the President or the Board of Directors. 1 As amended and restated on October 8, 2014.
Section 2.3 Nomination of Directors and Presentation of Business at Shareholder Meetings. (a) Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the shareholders may be made at an annual meeting of shareholders (i) pursuant to the Corporation s notice of meeting, (ii) by or at the direction of the Board of Directors, or (iii) by any shareholder who was a shareholder of record at the time of the giving of notice provided for in this Section 2.3, who is entitled to vote thereon at the meeting and who complied with the notice procedures set forth in this Section 2.3; provided that, except as otherwise required by applicable law, nominations of persons for election to the Board of Directors shall only be given by shareholders who own at least five percent (5%) of the Corporation s outstanding common stock and (x) who have held such shares for at least twenty-four months and (y) who have been in compliance with their obligations (including with respect to timing, filing and disclosure) under 17 C.F.R. 240.13d-1 through 240.13d-7 under the Securities Exchange Act of 1934 ( Exchange Act ) for a period of at least twelve months prior to such time as a notice is delivered (or required to be delivered) pursuant to Section 2.3(b) below. (b) For nominations or other business to be properly brought before an annual meeting by shareholders pursuant to clause (iii) of Section 2.3(a) above and the proviso following such clause, the shareholder must have given timely notice thereof in writing to the Secretary of the Corporation and must have acted in accordance with the representations set forth in the Nomination Solicitation Statement (as defined below) or Solicitation Statement (as defined below), as applicable. To be timely, a shareholder s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not less than one hundred eighty (180) calendar days and not more than two hundred (200) calendar days prior to the first anniversary of the date the proxy statement was released to the shareholders in connection with the preceding year s annual meeting; provided, however, that solely in the event that no proxy statement was released in connection with an annual meeting for the preceding year, no annual meeting was held in the preceding year or the date of the annual meeting is advanced by more than thirty (30) days or delayed by more than sixty (60) days from such anniversary date, notice by the shareholder to be timely must be so delivered not later than the close of business on the later of (i) the 60th day prior to such annual meeting, or (ii) the 10th day following the date on which public announcement of the date of such meeting is first made. (c) The shareholder s notice required pursuant to Section 2.3(b) (the Shareholder s Notice ) shall, in the event it includes a nomination of persons for election to the Board of Directors, set forth the following information: (i) the name, address and contact information of the shareholder who owns 5% of the Corporation s outstanding common stock and has held such shares for at least twenty-four months and who intends to make the nomination of persons for election to the Board of Directors (the Nominating Shareholder ) and any Shareholder Associated Person (such Shareholder Associated Person(s) and the shareholder who intends to make the nomination, the Nominating Persons ); 2
(ii) in addition, the Nominating Persons shall provide the following information: (A) the class and number of shares of stock of the Corporation which are owned and held by the Nominating Shareholder; (B) a detailed listing of all acquisitions or dispositions of stock of the Corporation by the Nominating Shareholder (including the number of shares acquired or disposed of in such transaction) during the twenty-four months preceding the date of the Shareholder s Notice; (C) the class and number of shares of stock of the Corporation which are directly or indirectly held of record or beneficially owned (as such term is defined in 17 C.F.R. 240.13d-3 ( Rule 13d-3 )) by each of the Nominating Persons, the date such shares were acquired and the investment intent of such acquisition; (D) with respect to the Corporation s securities, a detailed description of any Derivative Positions directly or indirectly held or beneficially held by each Nominating Person and the date on which such Derivative Positions were acquired; (E) whether and the extent to which a Hedging Transaction has been entered into by or on behalf of each Nominating Person and a detailed description of such Hedging Transaction, including the date on which any such Hedging Transactions was entered into or materially modified; (F) detailed disclosures (including date, substantive description of all matters discussed and participants) with respect to each direct or indirect (through any agent, representative or other person) communication, arrangement or agreement, in each case, whether written or oral (any such communication, arrangement or agreement, a 13d Communication ) during the twelve months preceding the date of the Shareholder s Notice, between any Nominating Persons or any Proposed Nominees (as defined below), on the one hand, and any person or entity that was at the time of such 13d Communication, or has since become, required to file pursuant to 17 C.F.R. 240.13d-1 of the Exchange Act, on the other hand, in respect of their interests in the Corporation and, in the case of any written 13d Communication, copies thereof; (G) detailed disclosures about any person who contacted or was contacted by the Nominating Persons regarding the Proposed Nominees during the twelve months prior to the date of the Shareholder s Notice, including in such disclosure the name and address of the contacted or contacting person and the date of contact; 3
(H) information detailing the investment intent or objective of each of the Nominating Persons, including in each case information verifying the date on which such investment intent was formed or changed; (I) a representation that the Nominating Person or Nominating Persons are entitled to vote in the election of directors at the meeting and intends to appear in person or by proxy at the meeting to nominate the Proposed Nominees; (J) a representation as to whether any Nominating Persons will solicit, directly or indirectly, a proxy from the holders of a sufficient number of the Corporation s outstanding shares required in order to elect each Proposed Nominee or otherwise to solicit proxies from shareholders in support of the nomination (such representation, a Nomination Solicitation Statement ); and (K) any other information required to be included in a proxy statement or other filings required to be made in connection with the solicitation of proxies or consents for a contested election of directors (even if an election contest or proxy solicitation is not involved) pursuant to Section 14 of the Exchange Act, and the rules, regulations and schedules promulgated thereunder; (iii) in addition, the Nominating Persons shall provide the following in respect of the person or persons to be nominated for election to the Board of Directors by the Nominating Persons (the Proposed Nominees ): (A) the name, address and contact information of the Proposed Nominees; (B) a statement of the Proposed Nominee s qualifications; (C) a description of any and all historical, current or planned compensatory, payment or other financial agreement, arrangement or understanding (oral or written) between the Proposed Nominees, on the one hand, and any other person or entity (including the Nominating Persons) other than the Corporation, on the other hand, in each case in connection with candidacy or service as a director of the Corporation; (D) the class and number of shares of stock of the Corporation which are directly or indirectly held of record or beneficially owned (as such term is defined in Rule 13d-3) by each of the Proposed Nominees, the date such shares were acquired and the investment intent of such acquisition; (E) with respect to the Corporation s securities, a detailed description of any Derivative Positions directly or indirectly held or beneficially held by each Proposed Nominee and the date on which such Derivative Positions were acquired; 4
(F) whether and the extent to which a Hedging Transaction has been entered into by or on behalf of each Proposed Nominee and a detailed description of such Hedging Transaction, including the date on which any such Hedging Transaction was entered into or materially modified; (G) the written consent signed by each Proposed Nominee evidencing a willingness to serve as a director if elected; (H) a commitment by each Proposed Nominee to meet personally with the Corporation s nominating and corporate governance committee; and (I) the completed and executed Nominee Representation and Agreement described in Section 2.3(j) of this Article II; (J) any other information required to be included in a proxy statement or other filings required to be made in connection with the solicitation of proxies or consents for a contested election of directors (even if an election contest or proxy solicitation is not involved) pursuant to Section 14 of the Exchange Act, and the rules, regulations and schedules promulgated thereunder. (d) As to any other business that a shareholder proposes to bring before the meeting, the Shareholder s Notice shall set forth the following information: (i) the name, address and contact information for each shareholder proposing such business and any Shareholder Associated Person (collectively, the Proposing Persons ); (ii) a brief description of the business desired to be brought before the meeting (including the specific text of any resolutions or actions proposed for consideration and if such business includes a proposal to amend the Articles of Incorporation or these Bylaws, the specific language of the proposed amendment); (iii) the reason for conducting such business at the meeting; (iv) a representation that the Proposing Persons are entitled to vote at the meeting and intend to appear in person or by proxy at the meeting to present the proposed business to be brought before the meeting; (v) all of the information required by Section 2.3(c)(ii)(A), (B), (C), (D), (E) and (H), in each case substituting Nominating Shareholder and Nominating Person contained therein with Proposing Person ; 5
(vi) any material interest of the Proposing Persons in such business; (vii) detailed disclosures (including date, substantive description of all matters discussed and participants) with respect to each direct or indirect (through any agent, representative or other person) 13d Communication during the twelve months preceding the date of the Shareholder s Notice, between any Proposing Persons, on the one hand, and any person or entity that was at the time of such 13d Communication, or has since become, required to file pursuant to 17 C.F.R. 240.13d-1 of the Exchange Act, on the other hand, in respect of their interests in the Corporation and, in the case of any written 13d Communication, copies thereof; (viii) detailed disclosures about any person who contacted or was contacted by the Proposing Persons regarding the the proposed business during the twelve months prior to the date of the Shareholder s Notice, including in such disclosure the name and address of the contacted or contacting person and the date of contact; (ix) a representation as to whether such Proposing Persons will solicit, directly or indirectly, a proxy from holders of at least the percentage of the Corporation s outstanding capital stock required to approve the proposal or otherwise to solicit proxies from shareholders in support of the proposal (such representation, a Solicitation Statement ); and (x) any other information related to the Proposing Persons that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies or consents (even if a solicitation is not involved) by such Proposing Persons in support of the business proposed to be brought before the meeting pursuant to Section 14 of the Exchange Act, and the rules, regulations and schedules promulgated thereunder. (e) If information submitted or required to be submitted pursuant to this Section 2.3 by any Nominating Person or Proposing Person shall be inaccurate in any material respect, such information shall be deemed not to have been provided. Without limiting the foregoing, upon written request by the Secretary of the Corporation or the Board, any such shareholder shall provide, within five business days of delivery of such request (or such other period as may be specified in such request), written verification, satisfactory, in the discretion of the Board or any authorized officer of the Corporation, to demonstrate the accuracy of any information submitted by any Nominating Person or Proposing Person pursuant to this Section 2.3. If any Nominating Person or Proposing Person fails to provide such written verification or written update within such period, the information as to which written verification or a written update was requested may be deemed not to have been provided in accordance with this Section 2.3. All information required to be delivered pursuant to this Section 2.3 shall be included in all proxy statements filed and disseminated by the Nominating Persons or Proposing Persons, as the case may be, pursuant to Section 14 of the Exchange Act, and the rules, regulations and schedules promulgated thereunder. In no event shall any adjournment, deferral or postponement of an annual meeting or announcement thereof commence a new time period for the giving of a Shareholder s Notice as described above. 6
(f) Only such business shall be conducted at a special meeting of shareholders as shall have been brought before the meeting pursuant to the Corporation s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of shareholders with regard to which the Board has determined that directors are to be elected (i) pursuant to the Corporation s notice of meeting, (ii) by or at the direction of the Board, or (iii) by any shareholder who is a shareholder of record at the time of the giving of notice provided for in this Section 2.3, who shall be entitled to vote for the election of directors at the meeting and who complies with the notice procedures set forth in the last sentence of this paragraph (f). In the event the Corporation calls a special meeting of shareholders for the purpose of electing one or more directors to the Board, any such shareholder may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation s notice of meeting, if the Shareholder s Notice setting forth the information required by paragraph (c) of this Section 2.3 shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the later of (i) the 60th day prior to such special meeting, or (ii) the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. In no event shall any adjournment, deferral or postponement of a special meeting or announcement thereof commence a new time period for the giving of a Shareholder s Notice as described above. (g) Only such business shall be conducted at a meeting of shareholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.3. The chairman of the meeting of shareholders shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 2.3 and, if any proposed nomination or business is not in compliance with this Section 2.3, to declare that such defective nominations or proposal shall be disregarded. Notices delivered pursuant to this Section 2.3 will be deemed received on any given day if received prior to the close of business on such day. (h) For purposes of this Section 2.3, (i) Derivative Positions shall mean, with respect to a shareholder or any Shareholder Associated Person, any derivative positions including, without limitation, any short position, profits interest, option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise and any performance-related fees to which such shareholder or any Shareholder Associated Person is entitled based, directly or indirectly, on any increase or decrease in the value of shares of capital stock of the Corporation; 7
(ii) Hedging Transaction shall mean, with respect to a shareholder or any Shareholder Associated Person, any hedging or other transaction (such as borrowed or loaned shares) or series of transactions, or any other agreement, arrangement or understanding, the effect or intent of which is to increase or decrease the voting power or economic or pecuniary interest of such shareholder or any Shareholder Associated Person with respect to the Corporation s securities; (iii) public announcement shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act; (iv) Shareholder Associated Person of any shareholder shall mean (A) any person controlling, directly or indirectly, or acting in concert with, such shareholder, (B) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such shareholder or (C) any person directly or indirectly controlling, controlled by or under common control with such Shareholder Associated Person; and (i) Notwithstanding the foregoing provisions of this Section 2.3, (i) if any class or series of stock has the right, voting separately by class or series, to elect directors at an annual or special meeting of shareholders, such directors shall be nominated and elected pursuant to the terms of such class or series of stock; and (ii) a shareholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.3. To the extent this Section 2.3 shall be deemed by the Board of Directors or the Securities and Exchange Commission, or adjudged by a court of competent jurisdiction, to be inconsistent with the rights of shareholders to request inclusion of a proposal in the Corporation s proxy statement pursuant to 17 C.F.R. 240.14a-8 ( Rule 14a-8 ) under the Exchange Act, such rule shall prevail. (j) Submission of Representation and Agreement. To be qualified to be a nominee for election or re-election as a director of the Corporation, a person must deliver (in the case of a person nominated by a shareholder in accordance with subsection (b) or (f) of this Section 2.3, in accordance with the time periods prescribed for delivery of notice under such sections) to the Secretary at the principal executive offices of the Corporation a written representation and agreement (in the form provided by the Secretary upon written request) (the Nominee Representation and Agreement ) that such person (i) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question (a Voting Commitment ) that has not been disclosed to the Corporation or (B) any Voting Commitment that could limit or interfere with such 8
person s ability to comply, if elected as a director of the Corporation, with such person s fiduciary duties under applicable law, (ii) verifies the accuracy of all information provided pursuant to Section 2.3(c)(iii); and (iii) would be in compliance, and if elected as a director of the Corporation will comply, with all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation. The Corporation may also require any Proposed Nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such Proposed Nominee to serve either as a director of the Corporation or as an independent director of the Corporation under applicable Securities and Exchange Commission and stock exchange rules and the Corporation s corporate governance guidelines, or that could be material to a reasonable shareholder s understanding of the qualifications and/or independence, or lack thereof, of such Proposed Nominee. Section 2.4 Notice of Meetings. Written or printed notice stating the place, day, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) or more than seventy (70) days before the date of the meeting, either personally or by mail, by or at the direction of the Chairman of the Board, the President, the Board of Directors or the Secretary or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his or her address as it appears on the records of the Corporation, with postage thereon prepaid. Attendance at any meeting in person or by proxy shall constitute a waiver of notice of such meeting, except when a shareholder attends a meeting for the express purpose of objecting to the transaction of any business because the meeting has not been lawfully called or convened. Section 2.5 Conduct of Meeting. The Board of Directors of the Corporation may, to the extent not prohibited by law, adopt by resolution such rules and regulations for the conduct of the meetings or any meeting of shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations, the chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, (i) the establishment of an agenda for the meeting, (ii) the establishment of procedures for the maintenance of order, (iii) limitations on attendance at or participation in the meeting to shareholders of record of the Corporation, their duly authorized proxies and such other persons as shall be determined, (iv) restrictions on entry to the meeting after a specified time, (v) limitations on the time allotted to the questions or comments on the affairs of the Corporation, and (vi) the timing of the opening and closing of the voting polls. Unless otherwise determined by the Board or the chairman of the meeting, meetings of shareholders shall not be required to be held in accordance with any rules of parliamentary procedure. If demanded by ten percent (10%) of the shareholders entitled to vote, present in person or by proxy, the vote on any question or election shall be by ballot and conducted by two inspectors appointed by the chairman of the meeting and who are not directors; otherwise, no vote need be by ballot or conducted by inspectors. The chairman of the meeting shall have the power to adjourn the meeting to another place, if any, date and time. 9
Section 2.6 Closing of Transfer Books or Fixing of Record Date. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive payment of any dividend or other distribution, or in order to make a determination of shareholders for any other proper purpose, the Board of Directors of the Corporation may provide that the share transfer books shall be closed for a stated period but not to exceed, in any case, seventy (70) days. If the share transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten (10) days immediately preceding such meeting. In lieu of closing the share transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than seventy (70) days preceding such meeting or action, and, for a meeting of shareholders, not less than ten (10) days immediately preceding such meeting. If the share transfer books are not closed and no record date is fixed for the determination of shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the Board of Directors declaring such dividend is adopted, as the case may be, shall be the record date of such determination of shareholders. Section 2.7 List of Shareholders. The office or agent having charge of the transfer books for shares shall make, at least ten (10) days and not more than seventy (70) days before such meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting, arranged in alphabetical order, with the address of each and the number of shares held by each, which list, for a period of ten (10) days prior to such meeting, shall be kept on file at the principal office of the Corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting, and shall be subject to inspection by any shareholder during the whole time of the meeting. The original share ledger or transfer book, or a duplicate thereof, shall be prima facie evidence as to who are the shareholders entitled to examine such list or share ledger or transfer book or to vote at any meeting of shareholders. Section 2.8 Quorum and Manner of Acting. A majority of the outstanding shares of the Corporation entitled to vote at the meeting, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders; provided that, if less than a majority of the outstanding shares entitled to vote at the meeting are represented at said meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice to any shareholder not present at the meeting, to a specified date not later than ninety (90) days after such adjournment. At any subsequent session of an adjourned meeting at which a quorum is present in person or by proxy, any business may be transacted which could have been transacted at the initial session of the meeting if a quorum had been present. If a quorum is present, the affirmative vote of a majority of the shares represented at any meeting shall be the act of the shareholders, unless the vote of a greater number or voting by classes is required by law, the Articles of Incorporation or these Bylaws. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. Section 2.9 Proxies. At all meetings of shareholders, a shareholder may vote by proxy executed in writing by the shareholder or by his or her duly authorized attorney-in-fact. Such proxy shall be filed with the Secretary of the Corporation before or at the time of the meeting. No proxy shall be valid after eleven (11) months from the date of execution, unless otherwise provided in the proxy. 10
Section 2.10 Voting of Shares; No Cumulative Voting. Each shareholder shall have the number of votes provided in the Articles of Incorporation for each share of stock entitled to vote under the provisions of the Articles of Incorporation and registered in such shareholder s name on the books of the Corporation. Except as otherwise provided by the Articles of Incorporation, no cumulative voting shall be permitted in the election of directors. At all meetings of shareholders, except as otherwise required by statute, by the Articles of Incorporation or by these Bylaws, all matters shall be decided by the vote of a majority in interest of the shareholders entitled to vote and present in person or by proxy. Section 2.11 Voting of Shares of Certain Holders. The term shareholder as used in these Bylaws means a registered holder of share of the Corporation; provided, however, that if permitted by law: (a) Shares of stock in the name of another corporation, foreign or domestic, may be voted by such officer, agent or proxy as the bylaws of such corporation may prescribe, or, in the absence of such provision, as the Board of Directors of such corporation may determine. (b) Shares of stock in the name of a deceased person may be voted by his or her executor or administrator in person or by proxy. (c) Shares of stock in the name of a guardian, curator or trustee may be voted by such fiduciary either in person or by proxy provided the books of the Corporation show the stock to be in the name of such fiduciary in such capacity. (d) Shares of stock in the name of a receiver may be voted by such receiver, and shares held by or in the control of a receiver may be voted by such receiver without the transfer thereof into his or her name, if authority to do so is contained in an appropriate order of the court by which such receiver was appointed. (e) Shares of stock which have been pledged shall be voted by the pledgor until the shares of stock have been transferred into the name of the pledgee, and, thereafter, the pledgee shall be entitled to vote the shares so transferred. Section 2.12 Informal Action by Shareholders. Any action required to be taken at a meeting of the shareholders, or any other action which may be taken at a meeting of the shareholders, may be taken without a meeting if consents in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. 11
ARTICLE III DIRECTORS Section 3.1 General Powers. The business and affairs of the Corporation shall be managed by its Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law, the Articles of Incorporation or these Bylaws directed or required to be exercised and done by shareholders. Section 3.2 Number, Tenure and Qualifications. The number of directors to constitute the Board of Directors shall be six (6), provided that (i) such number may be increased or decreased by future action of the Board of Directors, (ii) the number of directors shall not be less than three (3); and (iii) the Board of Directors shall be composed of a two-thirds majority of Independent Directors, as such term is defined in the Corporation s Corporate Governance Guidelines. Each director shall hold office for the term specified in the Articles of Incorporation and until his or her successor, if any, shall have been elected and qualified, or until his or her earlier resignation, removal or death. Except for those directors appointed to the Board of Directors by reason of Section 3.3, only such persons who are nominated in accordance with the procedures set forth in Section 2.3 shall be eligible to serve as directors. No person shall qualify for service as a director of the Corporation if he or she has not consented to and acknowledged in writing all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation. Section 3.3 Vacancies and Newly Created Directorships. Unless otherwise provided by law, the Articles of Incorporation or these Bylaws, any vacancies in the Board of Directors for any reason, and any newly created directorships resulting from any increase in the number of directors, may be filled by a majority of the remaining directors, although less than a quorum, or by a sole remaining director, and any directors so chosen shall hold office until the next election of the class for which such directors shall have been chosen and until their respective successors are elected and qualified or until their earlier resignation, removal or death. If any unexpected vacancy occurs to reduce the number of Independent Directors below the two-thirds majority threshold as set forth in Section 3.2 above, except as may otherwise be required by applicable law, that vacancy shall be filled with an Independent Director within twelve (12) months of such vacancy. Section 3.4 Meetings. (a) The annual meeting of the Board of Directors shall be held at the same place as the annual meeting of the shareholders immediately following said meeting. In the event of adjournment of such annual meeting of the Board of Directors, because a quorum is not present or otherwise, such meeting may be held, without further notice, at any place within or without the State of Missouri, as may be designated by the directors adjourning such meeting, provided a quorum is present, but in no event later than thirty (30) days after the annual meeting of shareholders. All other meetings of the Board of Directors shall be held at the principal place of business of the Corporation or at such other place within or without the State of Missouri as may be designated by the Board of Directors. 12
(b) Regular meetings of the Board of Directors may be held without notice at such times and places either within or without the State of Missouri as shall from time to time be fixed by resolution adopted by the Board of Directors. Any business may be transacted at the annual meeting or any regular meeting of the Board. (c) Except as may otherwise be required by law, special meetings of the Board of Directors may be called at any time by the Chairman of the Board, the President or a majority of the members of the Board of Directors. Such meeting may be held either within or without the State of Missouri. Section 3.5 Notice of Meetings. No notice, other than that provided by these Bylaws, shall be necessary for the annual meeting of the Board of Directors, and no notice, other than as specified in Section 3.4(b), shall be necessary for any regular meeting of the Board. Written notice of each special meeting shall be given to each director, delivered personally or by mail or by telephone, at least three (3) days prior thereto. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the place of business of the director, with postage thereon prepaid. If notice be given by telegram, such notices shall be deemed to be delivered when the telegram is delivered to the telegraph company, addressed to the place of business of the director. Whenever any notice is required to be given to any director, a waiver thereof in writing signed by the director, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Attendance at a meeting shall be deemed a waiver of notice thereof, except where such attendance is for the purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Section 3.6 Meeting by Telephone Conference or Similar Communications Equipment. Unless otherwise restricted by the Articles of Incorporation or these Bylaws or by law, members of the Board of Directors of the Corporation, or any committee designated by such board, may participate in a meeting of the Board or such committee by means of conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other, and participation in a meeting in such manner shall constitute presence in person at such meeting. Section 3.7 Quorum. A majority of the number of directors elected and holding office at the time of any meeting shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, provided that if less than a majority of such number of directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time without further notice. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board, unless the act of a greater number is required by law, the Articles of Incorporation or these Bylaws. Section 3.8 Action by Unanimous Consent. Any action which is required to be or may be taken at a meeting of the Board of Directors or any committee of the Board may be taken without a meeting if all the members of the Board of Directors or committee, as the case may be, consent in writing to such action. Such consents shall have the same force and effect as a unanimous vote of the directors or committee members at a meeting duly held. The Secretary shall file such consents with the minutes of the meetings of the Board or the committee, as the case may be. 13
Section 3.9 Committees. (a) The Board of Directors may, by resolution or resolutions adopted by a majority of the whole Board, designate two (2) or more directors of the Corporation to constitute one or more committees (including, without limitation, an Executive Committee). Each such committee, to the extent provided in such resolution or resolutions, shall have and may exercise all of the authority of the Board in the management of the Corporation; provided, however, that the designation of each such committee and the delegation thereto of authority shall not operate to relieve the Board, or any member thereof, of any responsibility imposed upon it or such member by law. (b) Each such committee shall keep regular minutes of its proceedings, which minutes shall be recorded in the minute book of the Corporation. The Secretary or an Assistant Secretary of the Corporation may act as Secretary for each such committee if the committee so requests. Section 3.10 Executive Committee. The Board of Directors at the annual or any regular or special meeting of the directors may, by resolution adopted by a majority of the whole Board, designate and elect any two (2) or more directors of the Corporation to constitute an Executive Committee of the Corporation and appoint one of the directors so designated as the chairman of the Executive Committee. The Executive Committee, to the extent provided in said resolution or resolutions, shall have and may exercise all of the authority of the Board of Directors in the management of the corporation. Vacancies in the committee may be filled by the Board at any meeting thereof. Each member of the committee shall hold office until such committee member s successor has been duly elected and qualified, or until such committee member s resignation or removal from the Executive Committee by the Board, or until such committee member otherwise ceases to be a director. Any member of the Executive Committee may be removed from the committee by resolution adopted by a majority of the Board. The compensation, if any, of members of the Executive Committee shall be established by resolution of the Board. (a) All actions taken by the Executive Committee shall be reported to the Board at the next meeting of the Board after such action is taken. The minute books of the Executive Committee shall at all times be open to the inspection of any director. (b) The Executive Committee shall meet at the call of its chairman or of any two members of the Executive Committee. A majority of the Executive Committee shall constitute a quorum for the transaction of business (or if there shall only be two members, then both must be present), and the act of a majority of those present at any meeting at which a quorum is present (or if there shall be only two members, then they must act unanimously) shall constitute the act of the Executive Committee. Section 3.11 Audit Committee. (a) The Board of Directors at the annual or any regular or special meeting of the directors may, by resolution adopted by a majority of the whole Board, designate and elect any two (2) or more directors of the Corporation to constitute an Audit Committee 14